ALBERT C. DROSTE, Appellant, vs. OTTO KERNER, GOVERNOR, et al., Appellees. (UNITED STATES STEEL CORPORATION, Intervenor-Appellee.)
Nos. 38249, 38905 cons.
Supreme Court of Illinois
March 24, 1966
May 18, 1966
495-516
In my judgment stability in judicial interpretations of the law is still sufficiently desirable to preclude the reversal here accomplished without benefit of legislative encouragement.
I would affirm the trial court ruling.
SCHAEFER, J., dissenting.
WILLIAM G. CLARK, Attorney General, of Springfield, (RICHARD A. MICHAEL and EDWARD A. BERMAN, Assistant Attorneys General, of counsel,) for appellees OTTO KERNER, Governor, and WILLIAM H. CHAMBERLAIN, Secretary of State.
DAVID S. KERWIN, of Chicago, (RALPH PATTERSON, of counsel,) for appellees Commissioners of Chicago Park District.
STEVENSON, CONAGHAN, HACKBERT, ROOKS AND PITTS, of Chicago, (HENRY L. PITTS and JEREMIAH MARSH, of counsel,) for appellee United States Steel Corporation.
Mr. CHIEF JUSTICE KLINGBIEL delivered the opinion of the court:
The source of the litigation is Senate Bill 782, approved June 26, 1963, whereby the legislature “granted, quit-claimed and conveyed in fee” to the United States Steel Corporation 194.6 acres of land submerged beneath the waters of Lake Michigan, with the proviso that the grant was to become effective when the corporation had paid $19,460 to the State Treasurer, and the Chicago Park District had conveyed all of its right, title and interest in the submerged lands to the State of Illinois. (Laws of 1963, pp. 1229-1231.) Several months later, plaintiff, Albert C. Droste, instituted two separate taxpayer actions to enjoin the sale and transfer, naming as defendants in each action the Commissioners of the Chicago Park District and the Governor and Secretary of State of Illinois. The Governor and Secretary of State have appeared by the Attorney General and support the validity of the act.
One action (No. 38249) was brought purportedly under authority derived from the
In plaintiff‘s second action (No. 38905), admittedly initiated because of his doubts as to the statutory footing of his first action, he alleged the constitutional invalidity of S.B. 782, alleged that the conveyance was in violation of the theory of public trust advanced in Illinois Central Railroad Co. v. City of Chicago, 173 Ill. 471, and prayed for a decla-
At the outset, we must consider our jurisdiction to entertain these direct appeals. The parties cannot confer that jurisdiction by consent or acquiesence. Kelly v. Guild, 25 Ill.2d 511.
The principal ground relied upon by plaintiff to support our jurisdiction is his contention that the act in question violates section 22 of article IV of the Illinois constitution, which imposes certain limitations upon the legislative powers of the General Assembly. It is fundamental that the constitution is not regarded as a grant of powers to the legislative department but every subject within the scope of civil government rests in the General Assembly unless
It was well settled, prior to the constitution of 1870, that subject to the paramount power of the Federal government over commerce, including navigation, title to the lands submerged by the waters of Lake Michigan lying within the boundaries of Illinois rested in the State of Illinois in trust to protect the rights of the public in the use of those navigable waters for fishing, boating, recreation and other public purposes. This did not mean, however, that the shoreline was required forever to remain unchanged except by natural causes. An equally important part of the doctrine was that the State might from time to time relinquish its trust as to specific parcels of submerged lands by action of the General Assembly in granting to a shore owner title to those lands adjacent to his property where the grant was in aid of commerce and where the public interest in the lands and waters remaining was not substantially impaired. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L. Ed. 1018, and authorities cited.
The proper execution of this public trust with respect to submerged lands requires that the conveyance of any particular parcel to a shore owner be consistent with the public interest and not impair the interest of the public in the lands and waters remaining. It would not be possible for the State to make that determination in the administration of the trust unless it has the power to specify the individual or corporation to whom the submerged lands are to be conveyed. We are not prepared to hold that
The plaintiff refers to the clause of
Plaintiff places reliance on Illinois Central Railroad Co. v. City of Chicago, 173 Ill. 471. There the question was whether legislative authority existed to fill in the waters of Lake Michigan. It was held that such legislative authority had not been given and that the fill was therefore improper. That decision does not aid plaintiff.
In People ex rel. Moloney v. Kirk, 162 Ill. 138, an
The plaintiff suggests other constitutional grounds of attack on the statute in question, such as insufficiency of its title and violation of due process. We have carefully examined them and find them to be without merit. The trial court determined that under the constitution and laws of Illinois, including
While we do not agree that the act in question violates
Plaintiff, in support of his right to sue under the
Reduced to its simplest terms the first issue presented by plaintiff‘s arguments is whether the legislature, in enacting the
Applying these criteria here it is manifest that the “liberal construction” for which plaintiff contends cannot prevail. Webster‘s New International Dictionary, 2d ed. p. 2005, defines “public funds” as being: “Moneys belonging to a government, or any department of it, in the hands of a public official.” (See also: Cases collected in Words & Phrases, Perm. ed. vol. 35, pp. 164-172.) Approximately the same definition is given in Black‘s Law Dictionary, 4th ed., p. 802, and this court has on two occasions stated that the word “funds“, in its common usage, “ordinarily means money or negotiable instruments readily convertible into cash, and has been defined as property of every kind when such property is contemplated as something to be used for payment of debts.” (People ex rel. Illinois Armory Board v. Kelly, 369 Ill. 280, 284-285; Broadway Bank of St. Louis v. McGee Creek Levee and Draining Dist. 292 Ill. 560, 565.) In the face of these accepted meanings, the legislature
Nor, as plaintiff alternatively suggests, may this court extend the operation of the act to suits involving the conveyance of land by State officials. Courts have no legislative powers, and their sole function is to determine and, within the constitutional limits of the legislative power, give effect to the intention of the lawmaking body. We will not and cannot inject provisions not found in a statute, however desirable or beneficial they may be. Western National Bank of Cicero v. Village of Kildeer, 19 Ill.2d 342; People ex rel. Honefenger v. Burris, 408 Ill. 68.
With respect to plaintiff‘s second action (No. 38905), it has long been the law in Illinois that an individual, be he a taxpayer, (Koehler v. A Century of Progress, 354 Ill. 347; McPike v. Illinois Terminal Railroad Co. 305 Ill. 298,) or a property owner, (McCormick v. Chicago Yacht Club, 331 Ill. 514; Carstens v. City of Wood River, 344 Ill. 319,) in the absence of statutory authority conferring such right, has no standing in equity to enjoin an alleged misuse of property held in trust for the public, unless he alleges and proves that he will suffer special damage, different in degree and in kind from that suffered by the public at large. The amended complaint of plaintiff in this action is totally devoid of allegations which set forth such special damage. Without such allegations he has no standing to bring this suit.
The decrees of the court below are affirmed.
Decrees affirmed.
Mr. JUSTICE SCHAEFER, dissenting:
By a curious inversion the majority opinion first decides the case on the merits, and then determines that the plaintiff has no standing to raise the issues that have already been decided. I am unable to agree with either determination. The nature of the problems, and their importance, preclude a cursory statement of the reasons for my disagreement.
Illinois has long recognized the right of a citizen and taxpayer to sue in equity to enjoin the misappropriation of public funds. In Colton v. Hanchett, (1852) 13 Ill. 615, a taxpayer was permitted to sue to enjoin the county Board
In 1887 the doctrine that had previously been applied to illegal expenditures of public funds was applied to the illegal disposition of public land. In McCord v. Pike, 121 Ill. 288, the court held that a taxpayer‘s bill in equity would lie to restrain the board of county commissioners of Cook County from illegally executing and delivering a deed conveying property of the county. In Littler v. Jayne, (1888) 124 Ill. 123, the court applied the same doctrine to the misuse of state assets. In this case a state taxpayer sought to enjoin the State House Commissioners from approving vouchers which would have led to the expenditure of funds under an illegal contract. Without prolonged discussion, and upon the authority of the local government cases, the propriety of the action was sustained. See also Burke v. Snively, (1904) 208 Ill. 328.
In 1915 the court decided Jones v. O‘Connell, 266 Ill. 443, and Fergus v. Russel, 270 Ill. 304. In the Jones case a taxpayer brought an action to restrain the county treasurer of Cook County from illegally retaining a percentage of inheritance taxes which he would collect in the future, and
In Fergus v. Russel, the underlying basis of the taxpayer‘s suit was again articulated. There a state taxpayer sued to enjoin the payment of a number of legislative appropriations. The court said “We have repeatedly held that tax-payers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the tax-payers’ equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation. * * * Upon principle and reason we perceive no distinction between the right of a taxpayer to enjoin the misappropriation of public funds from a municipal treasury and the right to enjoin an invalid appropriation of the public funds from the State treasury.” 270 Ill. at 314, 315.
The majority opinion disposes of plaintiff‘s right to maintain his nonstatutory action in a single sentence, stating
In Koehler v. A Century of Progress a taxpayer was denied standing to enjoin an alleged temporary misuse of public land and to seek the appointment of a receiver to collect “just and reasonable” rents from the private corporation which was permitted to use the public land. The court said: “The lands involved here and which are described in the bill are held in trust by the South Park Commissioners for the use of such lands by the public. An obstruction or mis-use of public property which does not result in special injury to the individual cannot be complained of except by the people. To entitle a tax-payer to maintain a bill to enjoin a breach of public trust, he must, in the absence of statutory authority conferring such right, show that he is specially injured thereby. * * * He is entitled to invoke equitable jurisdiction only to protect his property from threatened injury, and unless it is shown that he will suffer damage, different in degree and kind from that suffered by the public at large, he will not be heard to complain of mis-use of public property. Carstens v. City of Wood River, 344 Ill. 319; McCormick v. Chicago Yacht Club, 331 id. 514; McPike v. Illinois Terminal Railroad Co. 305 id. 298; Hill v. St. Louis and Northeastern Railway Co. 243 id. 344.” 354 Ill. at 349, 350.
In McPike v. Illinois Terminal Railroad Co. the court said: “The rule is that the obstruction or misuse of streets
The cases relied upon by the majority and the line of authority of which they are a part rest upon considerations other than those that have supported the taxpayer‘s action. Their roots lie in the doctrine of public nuisance and they have regarded the encroachments, obstructions and misuse of public property with which they were concerned as public nuisances. In Guttery v. Glenn, 201 Ill. 275, 290-291, for example, the court said: “If, however, it were true that Union street is a street, which crosses the public square, then its enclosure by the board of trustees was a public nuisance. It is well settled that a public nuisance will not be restrained at the suit of a private person, unless such person suffers therefrom a special and particular injury distinct from that suffered by him in common with the public at large. In the American and English Encyclopedia of Law, (vol. 10-1st ed. p. 838) it is said: ‘Where the nuisance is public, the plaintiff, to obtain an injunction, must allege in his bill, and prove if need be, special damages peculiar to himself distinct from the public at large.’ In McDonald v. English, 85 Ill. 232, we said (p. 236): ‘We regard the rule as well settled, that for any obstruction to streets, not resulting in special injury to the individual, the public, only, can complain. Where, however, the obstruction is such that a public prosecution is authorized, and, at the same time, an individual has been specially injured thereby, as well as where the act has been private and an offense against the individual, solely, he may maintain an action and recover for
City of Chicago v. Union Building Association, 102 Ill. 379, appears to be the primary authority in this line of cases. And in that opinion, which was written by Mr. Justice Scholfield, the public nuisance flavor strongly appears in the authorities relied upon. Five years later, Mr. Justice Scholfield also wrote the opinion of the court in McCord v. Pike, 121 Ill. 288, a taxpayer‘s action to restrain the members of the Board of County Commissioners from executing and delivering a deed conveying property owned by the county. In sustaining the taxpayer‘s action, he said: “The first question to be considered is, will a bill in equity, by tax-payers, lie in a case like the present? The contention of plaintiff in error is, that such a bill will lie only in the name of the Attorney General, or of the State‘s attorney of the county, as the representative of the public. In some States, and notably in New York, this is the rule. (See Roosevelt v. Draper, 23 N.Y. 108.) But the ruling in this State is different. It is here held, that where an unjust and illegal burden is being imposed on the tax-payer by the municipality, or the money or property of the municipality, to replace which taxation must be levied, is being wasted or squandered, the tax-payer has such a direct interest that a bill to enjoin the threatened burden will lie. Colton v. Hanchett, 13 Ill. 615; Prettyman v. Supervisors, 19 id. 406; Perry v. Kinnear, 42 id. 160; Drake v. Phillips, 40 id. 389; Chestnutwood v. Hood, 68 id. 132; Devine v. County Commissioners, 84 id. 590; Mayor of Springfield v. Edwards, 84 id. 626; Railroad Co. v. People, 92 id. 170; Leitch v. Wentworth, 71 id. 147.
“It seems to be supposed that something was said in
The distinction between the two lines of cases lies in the fact that in the cases involving misuse, obstructions and encroachments the complaints are “bottomed on the proposition that the alleged illegal use of the park property was of special injury and damage to his [the plaintiff‘s] property.” (Carstens v. City of Wood River, 344 Ill. 319, 321-322.) The taxpayer‘s right to sue does not, however, depend upon any injury to his property. Indeed, he need not be an owner of real property. His right to sue is grounded upon his status as a taxpayer, and it is his equitable interest, as a taxpayer, in the public property which is being illegally disposed of that determines his standing to maintain the action.
In my opinion, neither Koehler v. A Century of Progress nor McPike v. Illinois Terminal Railroad Co. can be regarded as overturning the established policy of the State with respect to the rights of taxpayers. That policy had been adhered to by this court throughout the history of the State both before and after those decisions. (See Bowes v. City of Chicago, (1954) 3 Ill.2d 175.) That the legislature did not intend that a citizen and taxpayer should be forced to rely solely upon the efforts of public law officers for the protection of public rights is apparent from the statute referred to in the opinion of the majority. And the legislative policy is further illustrated by another statute, enacted in 1871, which allows a taxpayer to sue any person to recover “any money or property belonging to the municipality.” Laws of 1871, p. 218, art. X, sec. 4; now
The plaintiff challenged the validity of S.B. 782 on the ground that it is special legislation in violation of
The steel company cited four cases in support of the validity of the statute. The most recent of these, Smith v. Virgin Islands, (3rd cir. 1964) 329 F.2d 135, (cert. denied 377 U.S. 979, 12 L. Ed. 2d 747,) sustained a grant of public land to a private corporation against an attack upon due
To the extent that these four decisions bear at all upon the problem before this court, they are certainly not decisive. None of them involves a constitutional prohibition
The opinion of the majority does not mention the cases relied upon by the steel company. Instead, it bases its conclusion that S.B. 782 is valid upon what is to me a surprising misreading of the opinion of this court in People ex rel. Moloney v. Kirk, 162 Ill. 138. That case involved the extension of Lake Shore Drive in Chicago over submerged lands of the State. The extension was to be located more than 1000 feet east of the westerly shore line of the lake. The statute in question authorized the park commissioners to acquire “the riparian or other rights” of the shore owners by purchase or eminent domain, and it also provided that: “* * * in all cases where any boulevard or driveway is extended under the provisions hereof, the submerged lands lying between the shore of such public waters and the inner line of the extension of such boulevard or driveway shall be appropriated by the board of park commissioners to the purpose of defraying the cost of such extension, and to that end such board of park commissioners are authorized to sell and convey such submerged lands in fee simple, by deeds duly executed on its behalf by its president and under its corporate seal, and every deed executed in pursuance hereof shall vest a good title in the grantee to the premises intended to be conveyed thereby.”
Concerning the statute involved in the Kirk case, the majority opinion states: “* * * the Board of Park Commissioners was authorized by the statute to execute and make such conveyances to various shore owners.” (Emphasis supplied.) But the statute involved in the Kirk case did not authorize the park commissioners to execute conveyances “to various shore owners.” If it had done so, it would have presented the problem raised in the case before us. Instead, it authorized the park commissioners to sell and convey the
The opinion of the majority apparently attaches great significance to the fact that in the Kirk case the submerged lands were ultimately conveyed to specific grantees. But this fact is of no significance in determining whether or not the legislation authorizing the conveyances is special or general. Every conveyance must run to a specific grantee. The statute in the Kirk case neither named nor identified the grantees of the submerged land that was to be reclaimed, whereas the statute in the present case is itself a conveyance to a specific grantee.
The contention that invalidation of this statute as special legislation would cast doubt on titles that rest upon previous conveyances of this type is not convincing. The equitable doctrine of laches is applicable to taxpayers’ actions, (Bowman v. County of Lake, (1963) 29 Ill.2d 268, 280, and if a taxpayer has stood by without asserting his rights until the grantee has proceeded by partial or complete use under the grant, the defense of laches would be applicable against the taxpayer and the defense of estoppel against the public authorities, including the State. See People ex rel. Prindable v. New York Central Railroad Co. 400 Ill. 507, 516-18; Clokey v. Wabash Railway Co. 353 Ill. 349, 370; Melin v. Community Consolidated School District, 312 Ill. 376, 383; State v. Illinois Central Railroad Co. 246 Ill. 188, 234-5.
The State is not precluded from effectively providing for the disposition of its public grounds. The General Assembly has enacted general statutes providing for the disposition of land of municipal corporations and park districts. (See e.g.,
For example, if the State should decide that it would be in the public interest that a particular parcel of submerged land underlying Lake Michigan be filled in and devoted to some other purpose, the General Assembly might so declare and might offer the submerged lands for development for the use or uses so determined. A conveyance of the land in question to the highest and best bidder, having in view the legislative purpose for which the land is to be filled in, might then be authorized. In such a procedure, it would, of course, be necessary to compensate the abutting owner for the loss of his right of access. But a conveyance resulting from such a procedure would be very different from what is before us—a legislative conveyance to a particular grantee for an unspecified use. Such a conveyance, in my opinion, is exactly what the constitutional provision against special legislation vacating public grounds was designed to prevent.
Mr. JUSTICE SCHAEFER